Locke and Anarchic Constitutional Rights

I've long struggled with the following problem: Certain constitutional provisions appear to protect rights that under Lockean political theory (which was widely accepted by the Framers) would have been alienated upon entering into the social contract. These constitutional rights seem contrary to the very idea of governmental authority. On the other hand, popular attachment to them is intense. The most prominent examples are the Second Amendment and the Fifth Amendment privilege against self-incrimination. Another example (although one not protected in the Constitution) is the right to civil recourse - that is, the right of a plaintiff to a private right of action for civil wrongs.

Under Lockean political theory, those entering into the social contract give up their natural “executive” right to private enforcement of natural rights. After entering into the social contract, only the majority (or its government) possesses the power to adjudicate and punish rights-violations. Individuals are bound by the majority's decision, even if they believe it is wrong. Individuals are motivated to enter into the social contract because we tend to interpret our own rights and the rights of our kin too broadly. Because of the mutually imposed risks of mistaken judgments about rights-violations, private enforcement puts everyone in a worse position than they would be if they were subject to a single arbiter, even though the arbiter can itself make mistakes.

I believe that the right to bear arms, the privilege against self-incrimination, and the right to civil recourse are tied to the executive right. It is a puzzle, therefore, why they would have been retained upon entering into the social contract. They seem to recreate the very costs of private rights-enforcement that it was the purpose of governmental authority to end.

My current position on the matter is that popular attachment to these rights is simply a consequence of deep-seated ambivalence we all have about governmental authority. Although the way this ambivalence expresses itself varies (those on the left like the privilege and the right to civil recourse, those on the right like the Second Amendment), the ambivalence appears to be univeral. People seem to think it is important that a certain part of the executive right is protected from governmental intrusion. The scope of what is protected is generally symbolic, however, which is important to keep in mind when determining the scope of these constitutional rights.

Why Protect Private Arms Possession? Nine Theories of the Second Amendment, 84 Notre Dame Law Review 131-89 (2008)

The main goal of this article is to make sense of Justice Scalia's assertions in Heller that the right to bear arms limits governmental authority. It is this pre-existing limit on governmental authority that receives legal recognition in the Second Amendment. In particular, I try to understand why individuals might have a right to bear arms for the purpose of self-defense against private violence, and why this right might exist even if widespread arms possession makes us less safe. So understood, the Second Amendment protects an autonomy interest, not an interest in safety from violence.

One good thing about understanding the Second Amendment as protecting autonomy is that it ends up looking like other provisions in the Bill of Rights. The First, Fourth, and Eighth Amendments also protect autonomy interests, even at the cost of greater vulnerability to private violence. Another helpful thing about this reading is that the justifiability of the Second Amendment does not depend upon empirical arguments about the social effects of widespread arms possession. 

After trying a different approach in earlier articles, my ultimate conclusion is this. The best argument in favor of Heller is that the Second Amendment carves out a part of the natural executive right and protects it against governmental intrusion out of a desire to preserve some of the autonomy that we possess in the state of nature. Although many find the idea of such a constitutional right anarchistic, I think they too are committed to comparable anarchistic rights in other areas. Ambivalence about governmental authority is universal.

On a personal note, I am interested in this autonomy justification, not as an advocate of the Second Amendment, but as someone who wants to understand this constitutional right. (I am one of those people for whom the right to bear arms does not resonate. I lived quite happily for a number of years in European countries with very strict gun control laws, without feeling that the government was exceeding its authority.) As I put it in this article, my method can best be understood as "normative reasoning under constraint." Assuming Scalia's conclusion in Heller, what are the best arguments in its favor?

Citations to this article have been fewer than I expected. I'm still waiting for people to take seriously the question of the Second Amendment's purpose, a matter that must be addressed with greater rigor if its scope is going to be answered in an intellectually responsible manner.

The Paradox of Auxiliary Rights: The Privilege Against Self-Incrimination and the Right to Keep and Bear Arms, 52 Duke Law Journal 113-178 (2002)

This article begins with a paradox in Lockean political theory. Consider someone who resists the government because she thinks it is acting beyond its authority. She thinks, for example, that she never entered into the social contract or that the government has gone beyond the rights that she assigned to it. The government disagrees. Does the government have the authority to decide this disagreement? If it lacks this authority, the result, it seems, is anarchism: The limits on governmental authority are whatever each individual says they are. If the government has this authority, the result is authoritarianism: The limits on governmental authority are whatever the government says they are. Both conclusions are unacceptable.

I then consider the privilege against self-incrimination and the right to bear arms and argue that each seems incompatible with governmental authority. The motivation for each, I argue, is the attempt to avoid the authoritarian side of the Lockean paradox. But because avoiding this side of the paradox forces one into anarchism, the scope of these constitutional rights is limited in an arbitrary fashion.

My views on these matters have changed. I still think that the Lockean dilemma is a serious problem, one that I hope to explore in a subsequent article. But I no longer think that admitting that the government lacks authority to decide whether it has authority means that the entirety of its authority evaporates. What is more important, although I still think that these two constitutional rights are indeed in tension with the authority of the state, I no longer think that the Lockean paradox is the primary reason that people are attracted to them. I would now describe their source, more vaguely but I think more accurately, in the attractions of the autonomy that one experiences in the state of nature, in which one is free to exercise one's own views about the scope of one's natural rights.

The Privilege’s Last Stand: The Privilege Against Self-Incrimination and the Right to Rebel Against the State, 65 Brooklyn Law Review 627-716 (1999)

The purpose of the privilege against self-incrimination is a puzzle. Although many justifications have been proposed, each has seemed inadequate in fundamental respects. One thing I tried to do in this article is canvass and reject the prevailing justifications. My model here was David Dolinko's excellent Is There a Rationale for the Privilege Against Self-Incrimination?, 33 UCLA Law Review 1063 (1986). But I went beyond Dolinko in a number of ways. First of all, I rejected a number of theories that he did not discuss. The most significant was the argument that the privilege protects the innocent: By giving the guilty the choice of silence, the privilege allows the innocent to signal their innocence through their free choice to take the stand. Id. at 646-48. This justification for the privilege was subsequently discussed in Daniel J. Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game Theoretic Analysis of the Fifth Amendment Privilege, 114 Harvard Law Review 430 (2000).

But the main part of the article is an argument that the privilege is motivated by the Lockean paradox discussed more fully in my Duke article. The privilege symbolizes the fact that each of us has the right to decide whether the government is acting within the scope of its authority. As was the case with the Duke article, my thinking on the matter has moved on, and I no longer think that the Lockean paradox (which remains a significant problem) is essential to understanding this anarchic right.

I plan on writing more on anarchic rights. In particular I would like to use the approach developed in my Notre Dame article to make sense of rights to civil recourse and other aspects of the American adversarial system.

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